On May 27, the Environmental Protection Agency (EPA) released the final version of the Waters of the U.S. Rule (WOTUS Rule). This rule alters the definition of protected water under the Clean Water Act (CWA). It is scheduled to take full effect on August 27, 2015.
Under this rule, private clubs across the country will likely have some of their ponds, creeks and streams fall under the CWA. As such, those clubs could be subject to EPA requirements that will regulate the use of certain chemicals and fertilizers on their golf courses.
Under the rule, there are now eight categories of protected water. The first four categories—1.) Traditional Navigable Waters, 2.) Interstate Waters, 3.) Territorial Waters and 4.) Impoundments of Waters—were already on the books and have remained the same. The next four have been newly crafted under this rule. For clubs, these new categories will cause the most problems.
The fifth category of protected water is “Tributaries.” Tributaries are defined as waters that have a bed, banks, an ordinary high water mark and a flow that goes, directly or indirectly, to other protected waters. Under this definition, perennial, intermittent and ephemeral streams can be deemed tributaries. Tributaries can also be natural, man-made or man-altered bodies of water, which could encompass many club water features.
The sixth category is “Adjacent Waters.” Adjacent waters border, are contiguous to or “neighbor” protected waters. Neighboring water is defined as:
1. All waters within 100 feet of the ordinary high water mark of the first five categories of protected water;
2. All water located within the 100-year floodplain and within 1,500 feet of the ordinary high water mark of the first five categories of protected water; and
3. All water within 1,500 feet of the high tide line of traditional navigable water, and territorial seas or within 1,500 feet of the ordinary high water mark of the Great Lakes.
Under this definition, a club’s brooks, streams, ponds, and lakes can all fall under the CWA’s jurisdiction simply by being near other protected water.
The seventh category is water labeled as “Prairie Potholes,” “Carolina and Delmarva Bays,” “Pocosins Wetlands,” “Western Vernal Pools in California” or “Texas Coastal Prairie Wetlands.” If your club has any of these types of water, the EPA will look at them on a case-by-case basis to see if there is an appropriate connection to other protected water.
The eighth category is water located within the 100-year floodplain of the first three categories of protected water and all water located within 4,000 feet of the ordinary high water mark of the first five categories of protected water. Again, if a club has this type of water the EPA will look at it on a case-by-case basis to determine if it should be labeled protected water.
As is clear, EPA has determined that any water that might impact other water is now protected under the Clean Water Act. NCA and our allies on the Water Advocacy Coalition believe the EPA has over stepped its authority under the CWA with this determination.
Throughout this rulemaking process, we have tried to work with the EPA to craft a fair rule. Unfortunately, our concerns were not addressed in this final rule. As such, we will continue to support bipartisan legislation in the House of Representatives and Senate that will overturn this rule, but it is clear the president will not sign it into law. As such, we will also focus on filing litigation to stop the EPA from moving forward.
Until there is some result from the courts, club leaders should consider beginning an audit of their course water. Club leaders will need to determine whether their water falls under one of these new categories and, if it does, ensure they meet the necessary requirements to avoid violating the CWA.
With an effective date beginning at the end of July, club leaders have the next 60 days to conduct this audit and begin a discussion with their boards and members. If NCA can be of any assistance in that process, please let us know. As always, when we receive additional information about the rule, we will pass that on to you.
